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DRAFT APPROVAL BILATERAL AGREEMENT

MADE UNDER SECTIONS 45 AND 46 OF THE ENVIRONMENT

PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 (CTH)

Commonwealth of Australia (Commonwealth)

and

The State of Tasmania(Tasmania)


Table of contents

Details 3

Provisions 51. Definitions and interpretation 52. Nature of this Agreement 73. Agreement Period 74. Effect of this Agreement 75. Assessment 86. Decisions on approval 107. Transparency and access to Information 138. Co-operation 159. Heritage management plans 1610. Administrative Arrangements 1711. Reports 1812. Review 1913. Sharing Information – ongoing EPBC Act matters 1914. Audits 1915. Rectification 1916. Escalation 1917. Suspension or cancellation 1918. Transitional 1919. Amendment 1920. Freedom of information 1921. General provisions 19

Schedule 1 – Declared class of actions 19

Schedule 2 – Open access to Information 19

Schedule 3 – Guidance documents for matters of National Environmental Significance 19

Schedule 4 – Additional streamlining measures 19

Bilateral Agreement under sections 45 and 46 of the EPBC Act

DRAFT

Execution page 19

Bilateral Agreement under sections 45 and 46, EPBC Act. Draft as at 29/07/2014


Details

Parties

The parties to this Agreement are:

1. the Minister for the Environment for and on behalf of the Commonwealth of Australia (Commonwealth); and

2. the Minister for the Environment, Parks and Heritage for and on behalf of the State of Tasmania (Tasmania)

Background

A. Under the Intergovernmental Agreement on the Environment 1992 and the Council of Australian Governments Heads of Agreement on Commonwealth and State Roles and Responsibilities for the Environment 1997, the parties committed to working together across their shared responsibilities to protect and conserve Australia’s environment.

B. Both the Commonwealth and Tasmania are committed to cooperative efforts to strengthen intergovernmental cooperation on the environment and to minimise costs to business while maintaining high environmental standards.

Objects

C. Under the Memorandum of Understanding dated 19 December 2013, the Commonwealth and Tasmania committed to the establishment of a ‘one stop shop’ for environmental approvals under the EPBC Act, removing duplication of assessment and approval processes while maintaining high environmental standards.

D. This Agreement facilitates the establishment of a ‘one stop shop’ for environmental approvals by

a. identifying the Tasmanian authorisation processes that may be accredited by the Commonwealth Minister under section 46 of the EPBC Act; and

b. declaring that the actions in the class of actions specified in Schedule 1 do not require approval under Part 9 of the EPBC Act for the purposes of the provisions of Part 3 of the EPBC Act specified in Schedule 1.

E. This Agreement aims to:

a. ensure Australia complies fully with all its international environmental obligations;

b. ensure matters of national environmental significance are protected as required under the EPBC Act;

c. promote the conservation and ecologically sustainable use of natural resources;

d. ensure an efficient, timely and effective process for environmental assessment and approval of actions; and

Bilateral Agreement under sections 45 and 46 of the EPBC Act 4


e. minimise duplication in the environmental assessment and approval processes of the Commonwealth and Tasmania.

F. The parties will use their best endeavours to implement the commitments in this Agreement acting in a spirit of cooperation and consultation to achieve an efficient, timely and effective process for environmental assessment and approval.



Provisions

1. Definitions and interpretation1.1 Definitions

In this Agreement, except where the contrary intention is expressed, terms have the same meaning as in the EPBC Act and otherwise the following definitions are used:

Accredited Process a bilaterally accredited authorisation process accredited for the purpose of the EPBC Act and this Agreement by the Commonwealth Minister.

Administrative Arrangements

administrative arrangements made under clause 10.1 of this Agreement.

Agreement this bilateral agreement made under section 45 of the EPBC Act between the Commonwealth and Tasmania, as amended from time to time, including its Schedule(s).

Assessment Report in respect of:

(a) a class of action described in Item 2(a)(i) of Schedule 1, the report required by section 26(1) of the State Policies and Projects Act 1993 (Tas);

(b) a class of action described in Item 2(a)(ii) of Schedule 1, the report required by Item 4.6 of Schedule 1 to this Agreement; and

(c) a class of action described in Item 2(a)(iii) of Schedule 1, the statement of reasons required by section 60T(6) of the Land Use Planning and Approvals Act 1993 (Tas).

Commencement Date the date this Agreement is executed by the parties or, if executed on separate days, the date on which this Agreement is executed by the last party to do so.

Commonwealth Minister

the Minister administering the EPBC Act and, where relevant, including a delegate of the Minister.

Department the Commonwealth Department of the Environment, or any other Commonwealth agency that administers this Agreement from time to time.

EPBC Act the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

EPBC Act Environmental Offsets Policy

the Environment Protection and Biodiversity Conservation Act 1999 Environmental Offsets Policy, October 2012 and as amended by the Commonwealth Minister from time to time.

Information includes data.



Law any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth, or a local government, and includes the common law and rules of equity, as applicable from time to time.

Matter of NES (national environmental significance)

a matter of national environmental significance protected by a provision of Part 3 of the EPBC Act specified in Item 2 of Schedule 1.

Tasmanian Minister the Tasmanian Minister administering the Environmental Management and Pollution Control Act 1994 including a person authorised by the Minister for the purposes of this Agreement, unless expressly provided otherwise.

Schedule a schedule to this Agreement.

Senior Officers’ Committee

the committee established under clause 10.2.

1.2 Interpretation

In this Agreement, except where the contrary intention is expressed:

(a) the singular includes the plural and vice versa, and a gender includes other genders;

(b) another grammatical form of a defined word or expression has a corresponding meaning;

(c) the meaning of general words is not limited by specific examples introduced by ‘for example’ or similar expressions;

(d) a reference to a clause, paragraph, Schedule or annexure is to a clause or paragraph of, or Schedule or annexure to, this Agreement;

(e) a reference to a statute, ordinance, code or other Law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; and

(f) notes and headings are for convenient explanation or reference only and do not form part of this Agreement or affect the meaning of the provisions to which they relate.

1.3 Priority of Agreement documents

(a) If there is inconsistency between any of the documents forming part of this Agreement, those documents will be interpreted in the following order of priority to the extent of any inconsistency:

(i) Schedule 1; then

(ii) the details and operative provisions of this Agreement; then

(iii) the remaining Schedules in their order of appearance.



(b) Administrative Arrangements will be read subject to this Agreement.

2. Nature of this Agreement(a) This Agreement is a bilateral agreement for the purposes of section 45 of the

EPBC Act.

(b) The parties do not intend this Agreement to create contractual or other legal obligations between the parties, other than as provided for in the EPBC Act.

(c) An undertaking by Tasmania (however expressed) in this Agreement does not operate to require Tasmania or any person in Tasmania to do anything to the extent that the doing of that thing would be inconsistent with Tasmanian Laws.

(d) To avoid doubt, this Agreement does not require Tasmania to make, or amend or to repeal any Tasmanian Laws.

(e) This agreement does not operate to alter the roles and responsibilities of the Commonwealth with respect to actions assessed and approved through any process other than an Accredited Process.

(f) Transitional support from the Commonwealth in the form of embedded officers will be provided in accordance with the Administrative Arrangements.

3. Agreement PeriodThis Agreement commences on the Commencement Date and continues until it is rescinded or revoked by further agreement between the parties or it is cancelled in accordance with the EPBC Act.

Note: Section 65(2) of the EPBC Act requires the Commonwealth Minister to cause a review of the operation of this Agreement to be carried out at least once every five years while this Agreement remains in effect. The operation of provisions of this Agreement may also be suspended under the EPBC Act for a period of time specified in a notice of suspension.

4. Effect of this Agreement4.1 Declaration

Subject to clause 4.2, it is declared that an action does not require approval under Part 9 of the EPBC Act for the purposes of the provisions of Part 3 of the EPBC Act specified in Item 2 of Schedule 1 to this Agreement if the action is in the class of actions specified in Item Error: Reference source not found of Schedule 1 to this Agreement.

4.2 Scope(a) Clause 4.1 applies to an action which occurs within Tasmania, including the

coastal waters of Tasmania.

(b) Where an action forms part of a larger action that does not occur wholly within Tasmania, Tasmania will consult and use its best endeavours to coordinate its assessment and approval processes with other relevant jurisdictions.

(c) Consistent with section 49 of the EPBC Act, the provisions of this Agreement do not have effect in relation to:

(i) an action in a Commonwealth area;



(ii) where an action is not wholly within a Commonwealth area – that part of the action that is in a Commonwealth area; or

(iii) an action taken by the Commonwealth or a Commonwealth agency unless expressly provided for in the class of actions specified in Item Error: Reference source not found of Schedule 1 to this Agreement.

(d) This Agreement does not apply to an action if:

(i) The taking of that action was approved, was taken to have been approved, or was refused under Part 9 of the EPBC Act, or determined to be clearly unacceptable under Division 1A of Part 7; and Note: Section 146D of the EPBC Act provides that an approval under section 146B of the EPBC Act is taken to be an approval under Part 9 of the EPBC Act.

(ii) that approval, refusal or determination that an action is clearly unacceptable remains in force.

(e) This Agreement does not apply to an action in Tasmania that was referred under Part 7 of the EPBC Act to the Commonwealth Minister before the Commencement date, unless the referral of the action has been, or is, withdrawn under section 170C of the EPBC Act, or has lapsed, or lapses, under section 155 of the EPBC Act.

(f) To avoid doubt, the declaration in clause 4.1 does not apply to an action that is substantially the same as an action the taking of which was refused, or determined to be clearly unacceptable, under the EPBC Act, as referred to in clause 4.2(d).

5. Assessment5.1 Identification of impacts on Matters of NES

(a) If approval is sought for an action under an Accredited Process, Tasmania will take reasonable steps to:

(i) notify the proponent of the action that there may be no requirement for an approval of the action under Part 9 of the EPBC Act; and

(ii) require the proponent of the action to identify the likely impacts on each Matter of NES.

(b) If approval is sought, other than under an Accredited Process, Tasmania will ensure that reasonable steps are taken to notify the proponent of the action of their obligation under the EPBC Act to refer an action which is likely to have a significant impact on a Matter of NES to the Commonwealth Minister.

Note 1: The notification under clauses 5.1(a)(i) and (b) may be undertaken in accordance with standard guidelines, which outline the obligation of proponents to consider the application of the EPBC Act where an action is likely to have a significant impact on a Matter of NES, and, if that Act may apply, to obtain an approval under an Accredited Process or, if such a process is not likely to or will not apply, to refer the proposal for a decision under section 75 of the EPBC Act.

Note 2: The requirement to identify impacts on Matters of NES in an application referred to in clause 5.1(a)(ii) may be included in guidelines or standard templates for applications.

5.2 Undertaking to assess impacts on Matters of NES

(a) Tasmania undertakes to ensure that there will be an adequate assessment of the impacts that actions that may be approved in accordance with an



Accredited Process:

(i) have or will have; or

(ii) are likely to have,

on each Matter of NES.

(b) For the purposes of clause 5.2(a), the impacts of a Matter of NES are adequately assessed if:

(i) they are assessed in accordance with applicable Tasmanian Laws to the extent permitted by those Laws (whether expressly or impliedly); and

(ii) they are assessed in accordance with clause 5.3.

Note: ‘Impacts’ include direct and indirect impacts, as defined in section 527E of the EPBC Act.

5.3 General approach to assessment

Where a proposed action may be approved in accordance with an Accredited Process:

(a) Tasmania will, in determining the assessment requirements for the proposed action, ensure there is sufficient Information on the relevant impacts of the proposed action to allow the decision-maker to make an informed decision whether or not to approve the proposed action and, if so, under what conditions. The extent of the assessment will be proportionate to the level of likely environmental risk; and

(b) Tasmania will ensure that:

(i) all relevant impacts of the action on Matters of NES are identified separately in the assessment process. This means that impacts must be explicitly assessed for each Matter of NES that is likely to be significantly impacted upon by the action;

(ii) in relation to listed threatened species, listed threatened ecological communities and listed migratory species – impacts are assessed with regard to the full extent of those matters’ range; andNote: For example, clause 5.3(b)(ii) would require an assessment of impacts with regard to the national extent of a listed threatened species’ habitat.

(iii) the Information and opinion on which the assessment is based is included, or its source identified, in the Assessment Report.

5.4 Seeking expert advice

(a) In relation to coal seam gas and large coal mining developments, Tasmania will:

(i) refer coal seam gas or large coal mining developments that are likely to have a significant impact on water resources, including any impacts of associated salt production and/or salinity, to the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development for advice; and

(ii) ensure any relevant advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development is taken into account in a transparent manner.

(b) Tasmania may seek advice from the Commonwealth on Australia’s international obligations as they relate to Matters of NES. The advice will be sought through the



Senior Officers’ Committee with details to be set out in the Administrative Arrangements.

(c) Tasmania may seek advice from other expert advisory bodies established under the EPBC Act or from the Department, through the Senior Officers Committee, with details to be set out in the Administrative Arrangements.

(d) The Department will provide advice sought by Tasmania under this clause or any document referred to in Clause 6 as quickly as possible and having regard to the statutory timeframes applicable under Tasmanian law for an Accredited Process.

5.5 Statutory undertaking

Where an action:

(a) is taken or proposed to be taken in Tasmania;

(b) is covered by the declaration in clause 4.1; and

(c) is:

(i) taken or proposed to be taken by a constitutional corporation; or

(ii) taken by a person for the purposes of trade or commerce between Australia and another country, between two States, between the State and a Territory, or between two Territories; or

(iii) whose regulation is appropriate and adapted to give effect to Australia's obligations under an agreement with one or more other countries,

Tasmania undertakes to ensure that the impacts that the action has, will have, or is likely to have on a thing that is not a matter protected by a provision of Part 3 of the EPBC Act, are assessed to the greatest extent practicable.

The parties agree that ‘greatest extent practicable’ is satisfied where the assessment has been undertaken in a manner of assessment consistent with the relevant Accredited Process.

6. Decisions on approval6.1 Avoid, mitigate, offset hierarchy

(a) To avoid unacceptable or unsustainable impacts on Matters of NES, Tasmania will:

(i) apply the ‘avoid, mitigate, offset’ hierarchy of principles for guiding the assessment and approval of a proposed action under an Accredited Process; and

(ii) if a residual significant impact cannot or is not proposed to be offset consistent with clause 6.2 – Tasmania will apply the escalation process set out in clause 16.1(a), as if there were a dispute between the parties.

(b) For the purposes of clause 6.1(a)(i) of this Agreement, the ‘avoid, mitigate, offset’ hierarchy of principles are the following in order from clause 6.1(b)(i) to (iii):

(i) significant impacts on Matters of NES should be avoided; Note: For example, changing the route of a proposed access road to avoid impacts on an endangered ecological community may comprise an avoidance measure.

(ii) after all reasonable avoidance measures have been put in place, mitigation of any residual significant impacts on Matters of NES must be



undertaken; thenNote: For example, putting in place measures to reduce sediment runoff from a development site that may otherwise affect a threatened fish species may comprise a mitigation measure.

(iii) once all reasonable avoidance and mitigation measures have been applied, or reasons are made public as to why avoidance or mitigation of residual significant impacts on Matters of NES is not reasonably achievable, Tasmania will require offsets in accordance with clause 6.2 for those impacts.

6.2 Offsets

(a) For the purposes of clause 6.1(b)(iii), Tasmania will:

(i) by applying the Tasmanian Department of Primary Industries, Parks, Water and Environment’s General Offset Principles, deliver an outcome equivalent to, or better than, the outcome that would apply if the EPBC Act Environmental Offsets Policy were applied (including application of the offsets assessment guide where it applies); orNote: The offsets assessment guide, which forms part of the EPBC Act Environmental Offsets Policy, gives effect to the policy in the case of a residual adverse significant impact on threatened species and threatened ecological communities.

(ii) if:

(A) the relevant decision-maker considers that a proposed offset (which may include proposed offsets for a region or class of development) is consistent with the EPBC Act Environmental Offsets Policy but not with the outcome indicated by the offsets assessment guide because of the unique nature of the impact or a proposed offset; and

(B) the Commonwealth Minister agrees that the proposed offset would provide an acceptable environmental outcome consistent with the objects of the EPBC Act;

apply the proposed offset referred to in clause 6.2(a)(ii)(A).

(b) Tasmania will publish Information showing how the offset applied under clause 6.2(a) was derived.

(c) Where relevant, offsets may contribute to the biodiversity conservation priorities of the Commonwealth and Tasmania governments, identified in plans or other instruments mentioned in clauses 6.3 and 6.4, or identified in accordance with the Administrative Arrangements.

(d) Tasmania will provide Information on offsets, including the nature and location of the offset, consistent with arrangements for Information exchange detailed in Schedule 2.

Note: Tasmania may provide notice to the Commonwealth if it proposes to make a decision that is different to the requirements of this clause 6.2 and, if so, escalation procedures apply as provided for by clause 16.

6.3 Approvals not inconsistent with plans, etc

To ensure that actions approved in accordance with an Accredited Process will not have unacceptable or unsustainable impacts on Matters of NES, the parties agree that, in deciding whether or not to approve the relevant actions, and if so, under what conditions, the relevant decision-maker will not act inconsistently with:



(a) for the world heritage values of a declared World Heritage property:

(i) Australia’s obligations under the World Heritage Convention;

(ii) the Australian World Heritage management principles; or

(iii) a management plan that has been prepared for the property under section 316 of the EPBC Act or as described in section 321 of the EPBC Act;

(b) for the National Heritage values of a National Heritage place:

(i) a management plan that has been prepared for the place under section 324S of the EPBC Act or as described in section 324X of the EPBC Act;

(ii) the National Heritage management principles; or

(iii) an agreement to which the Commonwealth is a party in relation to a National Heritage place;

(c) for the ecological character of a declared Ramsar wetland:

(i) Australia’s obligations under the Ramsar Convention;

(ii) the Australian Ramsar management principles; or

(iii) a management plan that has been prepared for the wetland as described in section 333 of the EPBC Act;

(d) for a listed threatened species or ecological community:

(i) Australia’s obligations under:

(A) the Biodiversity Convention;

(B) the Apia Convention; and

(C) Convention on International Trade in Endangered Species; or

(ii) a relevant recovery plan or threat abatement plan; and

(e) for a listed migratory species, Australia’s obligations under:

(i) the Bonn Convention;

(ii) China-Australia Migratory Bird Agreement;

(iii) Japan-Australia Migratory Bird Agreement;

(iv) Republic of Korea-Australia Migratory Bird Agreement; or

(v) an international agreement approved under section 209(4) of the EPBC Act,

as in force from time to time.

6.4 Consideration of policies and guidelines

To ensure that actions approved in accordance with an Accredited Process will not have unacceptable or unsustainable impacts on Matters of NES, the parties agree that in assessing the impacts of those actions, and deciding whether to approve those actions and, if so, under what conditions, Tasmania will ensure that relevant decision-makers:

(a) have regard to any relevant bioregional plans;

(b) take into account any Information on the relevant impacts of the actions that was given to the Commonwealth Minister under an agreement under Part 10



of the EPBC Act;

(c) have regard to any relevant approved conservation advice;

(d) take into account such other policies, advice or guidelines relating to relevant Matters of NES, published from time to time by the Commonwealth; and

(e) where relevant - record how those plans, policies or guidelines were taken into account.

Note: Such polices may include, for example, policies relating to determining whether particular activities may have a significant impact on a Matter of NES..

6.5 Approvals based on principles of environmental policy

The parties agree that when deciding whether to approve an action in accordance with an Accredited Process and, if so, under what conditions, Tasmania will ensure that relevant decision-makers, subject to Law, have regard to the principles of environmental policy, as set out in section 3 of the Intergovernmental Agreement on the Environment 1992.

6.6 Approval conditions

If:

(a) a proposed action has been assessed as being likely to have a significant impact on a Matter of NES; and

(b) the action is approved in accordance with an Accredited Process,

the approval, or associated assessment report, for the action must explicitly identify those conditions (if any) which relate to Matters of NES.

7. Transparency and access to Information7.1 Indigenous peoples

(a) The parties agree that, in relation to an action that is likely to have a significant impact on any Matters of NES, which may be approved in accordance with an Accredited Process under clause 4.1:

(i) the assessment of the relevant impacts of that action; and

(ii) the decision whether or not approve the action and, if so, under what conditions,

must recognise the role and interests of Indigenous peoples in promoting the conservation and ecologically sustainable use of natural resources and promote the cooperative use of Indigenous peoples’ knowledge of biodiversity and Indigenous heritage.

(b) In particular, Tasmania will:

(i) advise proponents to take all reasonable steps to obtain the views of directly affected Indigenous peoples in relation to any proposal under assessment that is likely to have a significant impact on any Matter of NES that relates to Indigenous heritage value or Indigenous tradition as defined in the EPBC Act or that will occur on or affect land or waters that may be subject to native title Note: ‘Native title’ in this clause relates to the Native Title Act 1993 (Cth)

(ii) advise proponent to consider the views of Indigenous peoples as an



important source of Information in relation to the Indigenous heritage value, or Indigenous tradition as defined in the EPBC Act that relates to a Matter of NES; and

(iii) consider guidelines published by the Commonwealth in relation to consulting with Indigenous peoples for proposed actions that are under assessment.Note: This may include impacts on biodiversity where relevant to Indigenous Heritage Value or Indigenous tradition.

(c) The Commonwealth will consult with Tasmania before amending or adopting guidelines referenced in clause 7.1(b)(iii).

Note: For example, for the purpose of this clause,

- a decision-maker would pay particular regard to submissions from Indigenous peoples with a particular interest in a proposal, assessed in accordance with an Accredited Process; and

- assessments or conditions on approval may require consultation with Indigenous peoples, e.g. in relation to adequacy of surveys relating to Matters of NES.

7.2 Public access to documentation

(a) Tasmania will:

(i) publish Information relating to the proposed actions on the Internet, including the following, where relevant:

(A) referral documentation (however described);

(B) draft and final guidelines or terms of reference for assessment;

(C) final environmental impact assessment documentation; and

(D) public comments on any of the above;

(ii) publish Information provided to decision-makers to assist decision-makers to exercise their functions or powers under an Accredited Process on the Internet, before that Information is used by the decision-maker; and Note: For example: Information providing rules, guidelines, practices or precedents relating to assessment and approval decisions.

(iii) in relation to actions that fall within the class of actions specified in Item Error: Reference source not found of Schedule 1, publish all the approval decisions for those actions, and the primary material on which those decisions are based, on the Internet as soon as practicable after the approval decisions are made (or earlier).

(b) Clauses Error: Reference source not found(a) will not be taken to have been breached where the publication of the Information is prohibited under Tasmanian Law, or otherwise not published or published in a particular manner, because the Information (or part thereof) is:

(i) confidential in nature;

(ii) the personal Information of an individual;

(iii) identified as being sensitive by the submitting Indigenous group or likely to be considered sensitive by an Indigenous group (including a kinship group), including in relation to any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group;



or

(iv) environmentally sensitive Information which, if published or published in a particular manner, may increase a risk of damage to the Matter of NES to which the Information relates.

(c) For the avoidance of doubt, where clause 7.2(c) applies Tasmania will comply with clauses 7.2(a) and (b) to the extent it is possible to do so without disclosing that part of the Information or material that is exempt from publication under clause 7.2(c).

(d) Where Information is made subject to a Restrictive Licence (as defined in Schedule 2), it will be exchanged between the parties in accordance with the protocols described in Schedule 2.

7.3 Public access – particular needs groups

(a) Tasmania will, in providing public access to assessment and approval documentation, make special arrangements, as appropriate, to ensure affected groups with particular communication needs have an adequate opportunity to:

(i) comment on actions assessed and approved in accordance with an Accredited Process; and

(ii) comment on and otherwise access approval documentation.

(b) The parties note that Indigenous people affected by a proposed action may have particular communication needs, and will make arrangements to ensure that affected Indigenous people have reasonable opportunity to comment on actions assessed and approved in accordance with this Agreement.

7.4 Public comments

Tasmania will receive and consider comments in relation to an action to which this Agreement applies from persons located anywhere in Australia, where the comments are properly made in accordance with the Accredited Process.

8. Co-operation8.1 Consideration of proposed actions

Where a Commonwealth agency becomes aware of an action that may belong to a class of actions to which this Agreement applies, the Commonwealth agency will notify Tasmania and redirect the proponent of the action to Tasmania for a decision on whether it requires assessment.

8.2 Open access to Information

(a) To improve environmental outcomes and maximise efficiency for business and government, and ensure Information on which regulatory decisions are made is fit for purpose, the parties commit to the following principles for open access to Information about the environment and regulated activities:

(i) Information is discoverable, accessible and reusable by the community, business, government and other stakeholders;

(ii) Information is published under an Open Licence, as defined in



Schedule 2, and available in the public domain;

(iii) Information is published and described in a way that maximises discovery and reuse, preferably online, and in open formats;

(iv) Information is published at the highest resolution and accuracy available; and

(v) Information is released at no cost to users.

(b) The parties commit to an active and cooperative process of mutually improving Information discovery, documentation, access and use.

(c) The parties will seek to give practical effect to the principles in clause 8.2(a), by implementing the protocols in Schedule 2.

(d) Clauses 8.2(a) and 8.2(b) will be taken not to have been breached, where the release or publication of the Information is prohibited, or otherwise exempt from publication or release, by Tasmanian or Commonwealth Law, or the Information is otherwise not published in a particular manner, because a party is satisfied that the Information (or part thereof) is:

(i) environmentally sensitive Information which, if published, may increase the risk of damage to a Matter of NES to which the Information relates;

(ii) likely to be considered sensitive by an Indigenous group (including a kinship group), including information in relation to any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group;

(iii) confidential in nature;

(iv) the personal Information of an individual; or

(v) otherwise not be in the public interest in the opinion of one or more parties.

8.3 Guidance documents

(a) The parties commit to cooperating in the development, maintenance, review, and implementation of guidance documents relating to Matters of NES and the operation of this Agreement.

(b) For the purposes of this clause 8.3, guidance documents may include:

(i) generic advice (rather than advice on particular projects) regarding whether referral to the Commonwealth Minister is required under the EPBC Act or may alternatively be made under an Accredited Process;

(ii) referral/application guidelines in relation to significant impacts on Matters of NES;

(iii) guidance documents for species and ecological communities in accordance with Schedule 3; and

(iv) policies relating to Matters of NES prepared by the Commonwealth that would impact on the operation of this Agreement, which may include guidance specific to discrete populations or components of Matters of NES relevant to Tasmania.



9. Heritage management plansThe parties agree to:

(a) work cooperatively, on an ongoing basis, to ensure the protection of the values for which each World Heritage property and National Heritage place in Tasmania is listed; and

(b) prepare and implement, according to World and National Heritage management principles:

(i) management plans for

(A) World Heritage properties under section 321 of the EPBC Act, and

(B) National Heritage places under section 324X of the EPBC Act; or

(ii) suitable alternatives to those plans.



10. Administrative Arrangements10.1 Administrative Arrangements

To ensure that the requirements of this Agreement are administered co-operatively and efficiently, the parties will jointly develop Administrative Arrangements:

(a) for the implementation of this Agreement;

(b) which may include co-operative arrangements for the assessment and approval of actions proposed in Tasmania, but which are not within the scope of this Agreement; and

(c) which may include guidelines on the exchange of Information for the purposes of clause 8.2,

on or by the Commencement Date.



10.2 Senior Officers’ Committee

(a) The Administrative Arrangements will detail and provide for the establishment of a Senior Officers’ Committee to oversee the implementation of this Agreement.

(b) Except as set out in the Administrative Arrangements, the Senior Officers’ Committee will meet at least quarterly in the first 12 months after the Commencement Date, and then at the frequency specified in the Administrative Arrangements.

(c) Terms of reference for the Senior Officers’ Committee will be set out in the Administrative Arrangements.

(d) Without limiting the terms of reference for the Senior Officers’ Committee, the Senior Officers’ Committee will in each year after the Commencement Date, other than in a year in which a review is undertaken under clause 12, evaluate the operation of this Agreement (which may include an evaluation done by an audit or other review).

(e) The parties may agree, at any time, that an evaluation under clause 10.2(d) is not to be undertaken in a particular year or years.

(f) An evaluation, under clause 10.2(d), may include, but is not limited to, an evaluation:

(i) of systemic outcomes relating to this Agreement; and

(ii) the operation of this Agreement;

against key performance indicators identified for the purpose of this clause in the Administrative Arrangements.

(g) The parties agree that a report of the evaluation will be published on the Department’s website as soon as practicable after it is completed. The parties will agree on the content of the report to be published.

Note: The parties intend that the Senior Officers’ Committee will have alternating Chairs; and will deal with both specific matters arising, including matters in dispute, but also be responsible for the ongoing operation of the Agreement, including making recommendations to governments on a continuous improvement basis, and considering the implications of any legislative or other system changes proposed by either party.

11. Reports11.1 Reports

(a) Before 1 November each year (or such other time as agreed by the parties), Tasmania will provide reports to the Commonwealth for the purpose of the Department’s annual reporting obligations under the EPBC Act, including an analysis of how this Agreement has been implemented with respect to actions which were conditioned or likely to be conditioned for the express purpose of avoiding, mitigating or offsetting what would otherwise have been a significant impact upon a Matter of NES.

(b) Reports provided to the Commonwealth under clause 11.1(a) will include, at a minimum:

(i) Information on the number of proposed actions under assessment or approved in accordance with this Agreement in the preceding 12 months;

(ii) Information on the time taken for assessments and approvals in



accordance with this Agreement;

(iii) Information on the Matters of NES relating to actions approved in accordance with this Agreement;

(iv) operation of the Tasmanian system for monitoring compliance with conditions of approval for actions to which this Agreement applies (for example, numbers of audits or compliance incidents relating to Matters of NES for actions approved in accordance with this Agreement);

(v) how any public complaints relating to the Accredited Processes were addressed; and

(vi) other Information reasonably requested by the Commonwealth to meet its annual reporting obligations under the EPBC Act.

(c) Tasmania will provide the following information to meet reporting commitments to the World Heritage Committee, for proposed actions that are likely to have a significant impact on a World Heritage property:

(i) the name of the World Heritage Property;

(ii) the proposal reference number (eg. state government reference number);

(iii) the proposal Title (eg. organisation name, proposal name, proposal place name);

(iv) a brief description of the proposal (approx. 1 page, with links to further information if practical);

(v) the development category – e.g. mining;

(vi) other information as agreed by the Senior Officers’ Committee.

(d) An agreed form of reporting will be set out in the Administrative Arrangements, with reporting requirements to be tailored to Tasmania systems and processes.

(e) For the purpose of meeting the requirements of clause 11.1(a) of this Agreement, a separate report is not required to be prepared by Tasmania if the required information specified in clause 11.1(b) is publicly available in a form that is appropriately accessible and adapted to allow the Commonwealth to efficiently meet all relevant reporting obligations.

11.2 Additional Information

(a) Each party will comply promptly with any reasonable request from the other party to supply Information relating to this Agreement where that Information is not already publicly available, and noting that the Commonwealth will seek to rely on publicly available Information to the extent practicable.

(b) For the purposes of clause 11.2(a), ‘Information' may include proposed decisions (however described) for actions to which this Agreement applies.

(c) The Commonwealth may from time to time, request Tasmania to provide copies of studies, reports and other Information (including non-published Information) in addition to the reports required under clause 11.1, where those studies, reports or other Information are in the possession of Tasmania.

(d) Tasmania will promptly respond to all reasonable requests by the Commonwealth under clauses 11.2(a) or (c).



12. Review12.1 Five year reviews

(a) A review of the operation and effectiveness of this Agreement must be carried out at least once every five years while the Agreement remains in effect in accordance with section 65 of the EPBC Act.

(b) Each review of this Agreement will be carried out jointly as agreed by the Senior Officers’ Committee, with each party meeting their own costs.

(c) Each review will include an evaluation of the operation and effectiveness of this Agreement against the objects of this Agreement. For the purpose of each review, the parties will specify key performance indicators in the Administrative Arrangements.

(d) Following consultation with the relevant Tasmanian Minister, the Commonwealth Minister must publish the report of each review in accordance with the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), and give a copy of the report of each review to Tasmania, as soon as practicable after the review is completed.

12.2 Transitional reviews

(a) An initial review will be undertaken within 3 years after the commencement of the Agreement.

(b) A review under this clause 12.2 will be undertaken by the Senior Officers’ Committee, unless the parties decide otherwise. The focus of such reviews will be whether the objects of this Agreement are being achieved and whether the Agreement has been implemented and is working effectively. For the purpose of the review, the parties will also specify key performance indicators in the Administrative Arrangements.

(c) The parties may seek public comments for the purpose of a review under this clause 12.2.

(d) The Commonwealth will publish the results of the review under this clause 12.2 as soon as practicable after the review is completed.

12.3 Third party studies

(a) A review under clause 12.1 or 12.2 may include studies, evaluations and other activities intended to analyse the success of the Agreement in achieving its objectives.

(b) Each party will, if requested by the other for the purpose of a review, and at the requesting party’s expense:

(i) allow agreed third parties reasonable access to the Tasmania relevant government offices to undertake analysis and evaluation of the Agreement; and

(ii) make records and other Information (including reports) discoverable, accessible and reusable to those third parties, engaged to undertake the review, for the purposes of the evaluation and analysis.



13. Sharing Information – ongoing EPBC Act matters(a) The parties note that the Commonwealth remains responsible for compliance

and enforcement under the EPBC Act, for actions to which that Act continues to apply.

(b) The parties agree to share Information and co-operate on compliance activities for actions to which the EPBC Act may continue to apply (which may include actions that are not approved under an Accredited Process, or approved by the Commonwealth Minister before the Commencement Date).

(c) The parties agree to notify each other of actions in Tasmania that have been taken without approval and have resulted, or are likely to result, in a significant impact on a Matter of NES.

(d) The Commonwealth will use its best endeavours to inform Tasmania before commencing enforcement action against a person for a contravention of Parts 3 to 9 of the EPBC Act for an action in Tasmania.

(e) Tasmania will use its best endeavours to inform the Commonwealth before commencing enforcement action under a relevant law against a person for taking an action to which the EPBC Act may continue to apply.

14. Audits14.1 Unscheduled audit, review or evaluation

(a) Either party may initiate a suitable approach to undertaking an audit, review or evaluation (‘an activity’) under this clause if:

(i) the scope of the proposed activity is subject to consultation in the Senior Officers’ Committee, before it is initiated; and

(ii) in the opinion of the initiating party, there has been or is likely to be an adverse systemic outcome relating to this Agreement, whether or not the outcome relates to a contravention or likely contravention of this Agreement, and the reasons for that opinion are provided to the other party before the activity is initiated.

(b) An activity under this clause 14.1 should be conducted in the most efficient and effective manner possible to address the particular circumstances identified in clause 14.1(a)(ii).

(c) Activities under this clause may include:

(i) an independent audit/review/evaluation of the operation of this Agreement over a period of time; and

(ii) a report, which addresses criteria specified by that party.

(c) Before a party arranges an activity under clause 14.1(c), the parties must notify the other party and consult on, where relevant:

(i) the appointment of an independent auditor or reviewer(s); and

(ii) the criteria of the activity.

(d) The parties agree to co-operate fully in an activity arranged under this clause 14.1.

(e) The party responsible for arranging an activity may publish that report of that activity.



(f) Before publishing the report under clause 14.1(c), the party responsible for arranging the report must:

(i) notify the other party and give them a copy of the final copy of the report; and

(ii) provide the other party 20 business days to respond to the report.

(g) Any financial cost incurred under this clause 14.1 will be borne by the party which arranges the activity.

14.2 Commonwealth Auditor-General

The parties recognise that, under the Auditor-General Act 1997 (Cth), the Commonwealth Auditor-General may audit the operations of the Commonwealth public sector (as defined in section 18 of that Act) in relation to this Agreement.

14.3 Tasmania Auditor-General

The parties recognise that, under the Audit Act 2008 (Tas) the Tasmanian Auditor-General may audit the operations of a State entity in relation to this Agreement.

15. RectificationTasmania is responsible for following the Accredited Process in relation to an action to which this Agreement applies, and addressing any issues that arise out of the process, including responding to matters raised by a proponent or the public.

16. Escalation16.1 Escalation process

(a) Acting in a spirit of cooperation, the parties agree that the process set out below is the primary mechanism for resolving any dispute or concern arising about the manner of operation of this Agreement:

(i) the party claiming that there is a dispute or concern will advise the other party and set out the nature of the dispute or concern;

(ii) the parties will seek to resolve the matter by direct negotiation using their best endeavours;

(iii) the parties will seek to resolve the matter as early as practicable; and

(iv) where the dispute or concern relates to the operation of the Agreement at a systemic level, discussions aimed at resolution will normally take place in the following order:

(A) at senior officials level, between officers of the Senior Officers’ Committee;

(B) between the Secretary of the Department and the Secretary of the Department of Primary Industries, Parks, Water and Environment;

(C) between the Commonwealth Minister and the Tasmanian Minister;

(D) By the process referred to in clause 17.

(v) where the dispute or concern relates to the assessment and approval



process for a specific proposed action, discussions aimed at resolution will normally take place in the following order:

(A) at senior officials level, between officers of the Senior Officers’ Committee;

(B) between the Secretary of the Department and the Secretary of the Department of Primary Industries, Parks, Water and Environment;

(C) by a notice issued under clause 16.2;

(D) by a determination by the Commonwealth under clause 16.4 or by the Tasmanian Minister under Clause 16.5.

(b) This clause is subject to the rights and obligations of each party under relevant provisions of the EPBC Act (including those sections dealing with cancellation and suspension of bilateral agreements).

16.2 Notice of particular interest

(a) If the Commonwealth considers that, based on substantial Information, that the taking of a proposed action being assessed in accordance with an Accredited Process may result in serious or irreversible environmental damage to a Matter of NES, the Secretary of the Department may issue a notice of particular interest to Tasmania in relation to that action.

(b) Before issuing a notice under clause 16.2(a), the parties will seek to consult the relevant proponent, and seek to resolve the matter consistent with 16.1(a).

(c) The notice, the reasons for issuing the notice, and a description of the Information on which the notice was based will be published on the Department’s website as soon as practicable after issuing the notice.

(d) Tasmania agrees to respond within 10 business days to any notice issued under clause 16.2(a) including a response to the reasons for issuing the notice and providing any additional relevant Information.

(e) Subsequent to a notice being issued under clause 16.2(a), if the Secretary considers that the matter has been adequately resolved, a statement to that effect will be published on the Department’s website as soon as practicable after the matter has been resolved.

16.3 Notice of determination or proposed decision

Where the Board of the Tasmanian Environment Protection Authority or another relevant decision-maker of Tasmania:

(a) has made a determination (in the case of the Environment Protection Authority) or is proposing to make a decision with respect to an action that may result in serious or irreversible environmental damage to a Matter of NES; and

(b) any subsequent approval decision may substantially not meet the requirements for decision-making defined in clause 16.6,

the decision-maker must, as soon as practicable, and, where it is possible to do so, no later than 10 business days before final approval is granted, notify the Commonwealth Department of the proposed decision.



16.4 Determination by the Commonwealth Minister

(a) Where the Commonwealth Minister considers that the Board of the Tasmanian Environment Protection Authority or another relevant decision-maker of Tasmania:

(i) is considering, is proposing to make or has made a determination (in the case of the Environment Protection Authority) or a decision that is likely to result in serious or irreversible environmental damage to a Matter of NES; and

(ii) the determination or proposed decision may substantially not meet the requirements for decision-making as defined in clause 16.6,

the Commonwealth Minister may determine that the action is not within the class of actions to which clause 4.1 applies, regardless of whether a notice has been issued under clause 16.2(a) or 16.3(a).

(b) The Commonwealth Minister cannot make a determination under clause 16.4(a) in relation to a particular action if that action has already been approved in accordance with an Accredited Process.

(c) The parties will seek to consult the relevant proponent, and consider the matter in the Senior Officers’ Committee, before any determination is made by the Commonwealth Minister in respect of the action.

(d) Notice of the determination by the Commonwealth Minister including reasons for issuing the determination, will be published on the Department’s website, as soon as practicable after issuing the notice.

(e) The Commonwealth Minister does not have a duty to consider whether to make a determination under clause 16.4(a) in respect of any action.

(f) Any reference to the Commonwealth Minister in this clause 16.4 is a reference to the Commonwealth Minister and not his or her delegate.

16.5 Determination by the Tasmanian decision-maker

(a) Where the Board of the Tasmanian Environment Protection Authority or another relevant decision-maker of Tasmania :

(i) is considering or proposing to make a decision that is likely to result in serious or irreversible environmental damage to a Matter of NES; and

(ii) any subsequent approval decision may substantially not meet the requirements for decision-making as defined in clause 16.6,

the Tasmanian Minister may determine that the action is not within the class of actions to which clause 4.1 applies.

(b) The Tasmania Minister cannot make a determination under clause 16.5(a) in relation to a particular action if that action has already been approved in accordance with an Accredited Process.

(c) The parties will consult the relevant proponent, and seek to resolve the matter consistent with clause 16.1(a), before any determination by the Tasmanian Minister is made in respect of an action.

(d) Notice of the determination by the Tasmanian Minister, including reasons for issuing the determination, will be published on the Department’s website, as soon as practicable after receiving the notice.

(e) The Tasmanian Minister does not have a duty to consider whether to make a



determination under clause 16.5(a) in respect of any action.

(f) Any reference to the Tasmanian Minister in this clause 16.5 is a reference to the Tasmanian Minister and not his or her delegate.

16.6 Requirements for decision-making

For the purpose of clause 16, of this Agreement, a decision may substantially not meet requirements for decision-making if that decision would substantially not meet the requirements for decision-making in clauses 5.4 or 6.1 - 6.5 inclusive (decisions on approval) of this Agreement.Note: In addition to the requirements for decision making in clauses 6.1 - 6.5, the general principles of administrative decision-making continue to apply, for example decisions affected by bias would not meet these requirements.

16.7 Obligations continueDespite the existence of a dispute or concern, the issue of a notice or a determination by either party under clause 16, both parties must continue to perform their respective obligations under this Agreement, except to the extent:

(a) this Agreement is suspended or cancelled in accordance with the EPBC Act; or

(b) that those obligations are affected by a determination by either party under clauses 16.4or 16.5.



17. Suspension or cancellation17.1 By Commonwealth Minister

Sections 57 to 64 of the EPBC Act provide that the Commonwealth Minister may cancel or suspend all or part of this Agreement (either generally or in relation to actions in a specified class, or for a particular provision of Part 3 of the EPBC Act to which the Agreement relates) under certain circumstances. Sections 57 to 64 of the EPBC Act also set out a process for consulting on the cancellation or suspension of all or part of this Agreement.

17.2 At the request of the relevant Tasmanian Minister

(a) Section 63 of the EPBC Act requires the Commonwealth Minister at the request of Tasmania Minister to cancel or suspend all or part of this Agreement if the request is made in accordance with this Agreement.

(b) A request by Tasmania Minister under section 63 of the EPBC Act to cancel or suspend all or part of this Agreement is made in accordance with this Agreement if:

(i) the request is made on the grounds that the Tasmanian Minister is not satisfied that the Commonwealth has complied, or will comply, with this Agreement; and

(ii) before making the request, the Tasmanian Minister has consulted with the Commonwealth Minister in writing about the reasons for requesting the suspension or cancellation and allowed a period of at least 20 business days for the Commonwealth Minister to respond.

(c) Any reference to the Commonwealth Minister in this clause 17.2 is a reference to the Commonwealth Minister and not his or her delegate.

(d) Any reference to the relevant Tasmanian Minister, in this clause 17.2 is a reference to the relevant Tasmanian Minister and not his or her delegate.

18. TransitionalThis Agreement does not apply to an action specified in clause 4.2.

Note: Where this Agreement and an accredited process can apply, a proponent may choose to withdraw the proposal under the EPBC Act, and have the matter dealt with under the accredited State process.

19. Amendment19.1 Continuous improvement

The parties will notify and consult each other on matters that come to their attention that are likely to improve the operation of this Agreement. The Administrative Arrangements may detail notification and consultation procedures to give effect to this clause.

19.2 Minor amendment

(a) The parties note that section 56A of the EPBC Act provides that the Commonwealth Minister may make a written determination that an intended draft amendment to a bilateral agreement will not have a significant effect



on the operation of the Agreement.

(b) Before making a determination under section 56A of the EPBC Act, the Commonwealth Minister must reach agreement with the Tasmanian Minister on the wording of the amendment.

19.3 Amendment of legislation

If the EPBC Act, State Policies and Projects Act 1994, (Tas), Environmental Management and Pollution Control Act 1994 (Tas), Land Use Planning and Approvals Act 1993 (Tas) or any other Accredited Process is subsequently amended, or proposed to be amended, in a manner that would affect the operation of this Agreement, the parties agree to promptly notify each other and the parties will seek to agree as soon as practicable on:

(a) the potential impact of the amendments on the operation of this Agreement; and

(b) whether it is necessary to make another bilateral agreement varying or replacing this Agreement.

20. Freedom of information(a) If a party receives any request, including under the Freedom of Information

Act 1982 (Cth) or the Right to Information Act 2009 (Tas), for any documents originating from another party which are not otherwise publicly available, the parties will, subject to the requirements of relevant Laws, consult on the release of those documents.

(b) The parties recognise the need for expeditious consultation on such requests so that statutory obligations can be met.

21. General provisions

21.1 Relationship to assessment bilateral agreementThis Agreement operates concurrently with a bilateral agreement in force with Tasmania in relation to environmental assessment.

21.2 CounterpartsThis Agreement may be executed in counterparts. All executed counterparts constitute one document.

21.3 NoticeA party giving notice or notifying under this Agreement must do so in writing or by electronic communication.

21.4 Disclosure of Information

Notwithstanding any other provision of this Agreement, the Department may disclose Information about this Agreement required by Commonwealth Law to be reported by the Department.



Schedule 1 – Declared class of actions1. BackgroundSection 46(1) of the EPBC Act relevantly provides that a bilateral agreement may declare that actions in a class of actions specified in the Agreement wholly or partly by reference to the fact that their taking has been approved in accordance with a bilaterally accredited authorisation process for the purpose of the Agreement do not require approval under Part 9 of the EPBC Act for the purpose of a specified provision of Part 3 of the EPBC Act.

2. Specified provisions of Part 3 of the EPBC Act2.1 For the purposes of the declaration in clause 4.1 of this Agreement, this item 2 specifies

the relevant provisions of Part 3 of the EPBC Act for which an approval under Part 9 is not required if the action concerned is in a class of actions specified in item 4.

2.2 An action in a class specified in item 4.1 of this Schedule does not require approval under Part 9 of the EPBC Act for the purposes of the following provisions of Part 3 of the EPBC Act:

(a) sections 12 and 15A (World Heritage properties);

(b) sections 15B and 15C (National Heritage places);

(c) sections 16 and 17B (declared Ramsar wetlands);

(d) sections 18 and 18A (listed threatened species and communities);

(e) sections 20 and 20A (listed migratory species);

(f) sections 21 and 22A (nuclear actions);

(g) sections 24D and 24E (actions involving coal seam gas development or large mining development with significant impact on water resource).

Note: Consistent with clause 4.2(c) and Schedule 1 Item 4.3, this Agreement does not apply to actions in the Commonwealth marine area. This Agreement may apply to actions outside the Commonwealth marine area which are likely to have a significant impact on the Commonwealth marine environment.

3. Authorisation processes3.1 For the purposes of this Agreement (including section 46(2A) of the EPBC Act), the

following authorisation processes, and the laws of Tasmania in which they are set out, are identified:

(a) the process set out in the laws of Tasmania for the authorisation of an action that is declared to be a project of State significance that may be carried out with an order under Part 3 of the State Policies and Projects Act 1993, being:

(i) the process of the making of an order under section 26(6) or section 26(8) of the State Policies and Projects Act 1993; and

(ii) the process of making an order specifying additional conditions under section 26A(6) of the State Policies and Projects Act 1993; and

(iii) the process of making an amending order under section 26B(9) of the State Policies and Projects Act 1993.

(b) the process set out in the laws of Tasmania for the authorisation of an action that may be carried out with an environment protection notice under section



27 of the Environmental Management and Pollution Control Act 1994, being:

(i) the process of the issue of an environment protection notice by the Director of the Environment Protection Authority under section 27 of the Environmental Management and Pollution Control Act 1994 where an assessment by the Board of the Environment Protection Authority is undertaken in accordance with section 27(3) of the Environmental Management and Pollution Control Act 1994;

(ii) the process of the issue or amendment of an environment protection notice by the Resource Management and Planning Appeal Tribunal after an appeal in accordance section 27(7) of the Environmental Management and Pollution Control Act 1994.

Note: this process excludes the issue of an environment protection notice where the Board of the Environment Protection Authority forms the opinion in accordance with section 27(4) that an assessment is not required.

(c) the process set out in the laws of Tasmania for the authorisation of an action that is a use or development that may be carried out with a permit under sections 57(6) or 58(2) of the Land Use Planning and Approvals Act 1993 following an assessment by the Board of the Environment Protection Authority under Part 3, Division 1 of the Environmental Management and Pollution Control Act 1994, being:

(i) the process of the grant of a permit by the planning authority; and

(ii) the process of the grant of a permit by the planning authority after the determination of an appeal to the Resource Management and Planning Appeal Tribunal; and

(iii) the process of amending a permit by the planning authority under section 56 of the Land Use Planning and Approvals Act 1993.

(d) the process set out in the laws of Tasmania for the authorisation of an action that is a use or development that is declared to be a project of regional significance that may be carried out with a special permit under Division 2A of Part 4 of the Land Use Planning and Approvals Act 1993, being:

(i) the process of the grant of a special permit by the Development Assessment Panel under section 60T of the Land Use Planning and Approvals Act 1993 (including the grant of a special permit after an environmental impact assessment by the Board of the Environment Protection Authority under section 60L of the Land Use Planning and Approvals Act 1993); and

(ii) the process of amending or correcting a special permit by the Tasmanian Planning Commission under section 60X of the Land Use Planning and Approvals Act 1993.

4. Class of actions4.1 Specified class of actionsFor the purpose of clause 4.1 of this Agreement, the following class of actions are specified:

(a) the action is declared to be a project of State significance that is authorised to be carried out in accordance with an order granted or modified under the authorisation process described in item 3.1(a) after the Commencement Date;



(b) the action is an activity that is authorised to be carried out in accordance with an environment protection notice under the authorisation process described in item 3.1(b) after the Commencement Date;

(c) the action is a use or development that is authorised to be carried out in accordance with a permit granted or amended under the authorisation process described in item 3.1(c) after the Commencement Date;

(d) the action is a use or development that is authorised to be carried out in accordance with a special permit granted, amended or corrected under the authorisation process described in item 3.1(d) after the Commencement Date.

4.2 Nuclear actions

An action is not in a class of actions specified in item 4.1 if it consists of or involves the construction or operation of any of the following nuclear installations referred to in sections 140A(a) to (d) of the EPBC Act.

(a) a nuclear fabrication plant;

(b) a nuclear power plant;

(c) an enrichment plant; and

(d) a reprocessing facility.

4.3 Other provisions

(a) To avoid doubt, an action is not in a class of actions specified in item 4.1 if the Commonwealth Minister has determined, under clause 16 of this Agreement, that it is not an action to which the declaration in clause 4.1 of this Agreement applies.

(b) To avoid doubt, for the purposes of items 4.1, an action is authorised to be carried out in accordance with an order, permit, special permit of environment protection notice, only while that order, permit, special permit of environment protection notice remains in force.

(c) Consistent with section 49 of the EPBC Act, Item 4.1 does not apply to an action within a Commonwealth marine area. However, Item 4.1 does apply to an action taken outside a Commonwealth marine area which is likely to have a significant impact on that marine area.



Schedule 2 – Open access to Information

1. DefinitionsOpen Licence a licence which establishes clear reusage rights of, and

open access to, Public Sector Information such as those in the Creative Commons licences available at www.ausgoal.gov.au/the-ausgoal-licence-suite.

Public Sector Information

Information that is created, collected, or funded, by or on behalf of

(a) the Commonwealth;

(b) a State;

(c) a Territory; or

(d) an agency or authority of the Commonwealth, a State or a Territory.

Restrictive Licence a licence used for material that has some form of limiting or restrictive condition, for example it contains personal, environmental or cultural sensitivity, or confidential Information which has a high risk associated with its release.

2. Background(a) There is a worldwide movement to improve (open) access to public sector

information1. Public sector information broadly means information that is created, collected, or funded, by or on behalf of the Commonwealth, a State or Territory, or an agency or authority of these. Australian governments have committed to open information in policies and legislation2 and there is practical guidance and assistance for agencies3.

(b) The rationale for open public sector information (as described in the footnote references) is that it does deliver significant efficiencies and achieve better environmental outcomes by enabling governments, industry and the community to discover, access, reuse, and contribute to information about the environment and heritage. It will also enable monitoring of the effectiveness of environmental regulation.

(c) Open information in the environmental domain brings a range of benefits, including:

(i) Enabling business to access existing information rather than duplicate it;

(ii) Reducing transactional costs for all stakeholders by removing the need

1 www.ausgoal.gov.au/what_is_open | www.oaic.gov.au/information-policy/information-policy-resources/information-policy-agency-resources/principles-on-open-public-sector-information | www.oecd.org/internet/ieconomy/40826024.pdf2 www.finance.gov.au/policy-guides-procurement/declaration-of-open-government/3 www.ausgoal.gov.au/overview



to negotiate licences to access information;

(iii) All stakeholders can access information relevant to them;

(iv) Allowing decisions to be made using the same information base;

(v) Enabling innovation by using information differently to the purpose for which it was obtained; and

(vi) Helping to ensure that all information used for decisions is fit for that purpose.

(d) The protocols outlined in this Agreement are intended to provide high-level guidance for the parties on key elements needed to achieve the policy intent of clause 8.2. These protocols are not intended to dictate specific approaches or timeframes for implementation and recognise that extensive guidance on achieving open information exists in the public domain and that parties will be implementing specific actions as part of existing initiatives. The parties recognise that capacity to implement the protocols is dependent on the resources available.

3. Information open access protocolsTo give effect to clause 8.2 of this Agreement, the parties will endeavour, as resources allow, to implement the following protocols:

(a) Apply standard, consistent Open Licences to information, preferably Creative Commons, and apply the least restrictive licence possible (that is Creative Commons Attribution).

(b) Ensure it is made clear to third parties, including proponents supplying information for environmental assessments and under conditions of approval, of the intention to apply an Open Licence, preferably a Creative Commons Attribution licence, to their information so that it will become Public Sector Information for the purposes of this Agreement.

(c) Ensure that, where information is licensed under a Restrictive Licence or cannot be published as open, it will be exchanged between parties and subject to appropriate information management practices and protocols.

(d) Publish information online, in machine readable form using open, standards-based formats.

(e) Attach high quality, understandable metadata to information so that it can be easily found and appropriately used.

(f) Adopt, use and reference commonly used metadata standards (where these exist) and lodge metadata covering the format, content and provenance in an appropriate open catalogue.

(g) Publish information as open access in a timely manner, preferably as it is collected or generated under this bilateral agreement.

(h) Provide alerts to make it easy for users to know that new information exists

(i) Manage information such that it is available under open access for at least the life of this bilateral agreement, and any regulated activities initiated under it.

4. Information scope(a) Examples of Information about environment and heritage include among other

things:



(i) listed matters of national environmental significance (including location and condition of critical habitats for species)

(ii) other flora and fauna species including migratory species, ecological communities, wetlands, cultural and natural heritage places, marine environments

(iii) threatening processes and prevalence of threats

(iv) natural and cultural heritage places and sites

(v) water and air quality

(vi) nature and location of offsets

(b) Examples of Information about regulated activities include among other things:

(i) locations and details of referred projects and approved projects

(ii) public comments and responses

(iii) project approval condition returns such as environmental monitoring data and other compliance information

(iv) geographic areas protected in reserves, parks, protected land and ‘corridors’, areas subject to conservation covenants or rehabilitation activities or offsets agreed as part of a project approval

(v) geographic areas subject to development planning decisions.

5. Information that does not have to be published or provided in a particular mannerClauses 8.2(a) and 8.2(b) will be taken not to have been breached, where:

(a) the publication by Tasmania (or a Tasmanian public authority) of the information is prohibited under Tasmanian Laws; or

(b) the publication by Tasmania (or a Tasmanian public authority) of the information could, in the opinion of the relevant officer, be an infringement of copyright or give rise to liability in defamation, or could otherwise expose Tasmania (or the authority) to a claim for damages or other compensation or payment of fees or remuneration; or

(c) there would be an overriding public interest against disclosure of the information under the Right to Information Act 2009 (Tas); or

(d) the information is not published (or is published in a particular manner) because the information is:

(i) confidential in nature; or

(ii) the personal information of an individual; or

(iii) likely to be considered sensitive by an Indigenous group (including a kinship group), including information relating to the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group; or

(e) environmentally sensitive information that, if published or published in a particular manner, may increase the risk of damage to a specific Matter of NES.



Schedule 3 – Guidance documents for matters of National Environmental Significance1. Background1.1 Streamlining and provision of advice

(a) The Commonwealth and Tasmania undertake to streamline policy and guidance documents developed by each party for assessments and approvals.

(b) As per clause 6.4, all guidance material and relevant policies and plans, identified for the purpose of that clause, will be detailed in the Administrative Arrangements.

(c) Where the Commonwealth holds specific expert advice that could be made available to Tasmania to assist with decision making. Tasmania may seek and take into account that expert advice as per clause 5.4.

1.2 Guidance documents(a) The Commonwealth develops guidelines, advice, plans and other documents

for particular species and ecological communities, to guide assessments and approvals, as well as long term conservation and management efforts. Tasmania will have appropriate regard to, and not act inconsistently with, those documents in accordance with this Agreement, and record how these were considered in decision-making.

(b) The Commonwealth will continue to develop such guidance documents as needed to support the effective operation of bilateral agreements.

(c) The parties note that there will continue to be a need to provide certainty, clarity and consistency in decisions regarding listed species and ecological communities, particularly those that cross State and Territory borders. Documents that support this include:

(i) statutory documents:

(A) approved conservation advice;

(B) recovery plans;

(C) threat abatement plans;

(D) wildlife conservation plans;

(E) advice provided by the Threatened Species Scientific Committee under section 190 of the EPBC Act; and

(F) advice provided by the Threatened Species Scientific Committee under section 189 of the EPBC Act.

(ii) non-statutory documents, such as:

(A) listing advice from the Threatened Species Scientific Committee;

(B) the Commonwealth’s Species Profile and Threats database profiles;

(C) species and ecological community guidelines and fact sheets;



(D) Matters of NES significant impact guidelines; and

(E) survey guidelines.

1.3 Improving guidance documentsIn consultation with the States and Territories, the Commonwealth will, from time to time, review the guidance documents outlined in Item 1.1 of this Schedule, including to:

(a) revise approved conservation advices, recovery plans, threat abatements plans and other guidance documents for listed threatened species and ecological communities as progress is made on recovery actions and as knowledge of a species’ or ecological community’s ecology or distribution changes; and

(b) continue to develop a range of strategic responses to the conservation of threatened species and ecological communities including regional recovery planning approaches.

2. Co-operation(a) The Commonwealth will seek the views and co-operation of Tasmania (and

other States and Territories) to develop and review the guidance documents identified in Item 1.1 of this Schedule.

(b) Without limiting Item 2(a), the Tasmania will participate in the consideration and development of guidance documents in the following ways:

(i) priorities for the development of guidance documents will be informed by comments provided by Tasmania;

(ii) responsibilities for drafting guidance documents will be discussed between the Department and States and Territories; and

(iii) the Commonwealth will seek endorsement from the relevant States and Territories for the content of guidance documents, subject to the responsibilities of the Commonwealth Minister and the Threatened Species Scientific Committee under the EPBC Act. Disputes about priorities or the content of advice notes will be addressed through best endeavours at resolution. If this fails, the Commonwealth will make a decision on the disputed matter.



Schedule 4 – Additional streamlining measures

1. Background(c) This Agreement is intended to make a significant contribution to reducing

duplication and double-handling of assessment and approval processes while maintaining high environmental standards.

(d) The parties agree that there remains opportunity to develop further streamlining measures to achieve greater process efficiency while maintaining high environmental standards.

2. Additional streamlining measures(e) The parties agree to work cooperatively to progress the following additional

streamlining measures outlined in Table 1 for the purposes of this Agreement.

Table 1

Streamlining activity

The parties agree to cooperate in preparing non-statutory species-specific policy prescriptions, for the use of proponents and local planning authorities, that if implemented, the parties agree will not have significant impacts on MNES. Prescriptions will be prepared for EPBC-listed species which have historically generated a high number of assessments under the EPBC Act.

The parties note that a management plan for the Tasmanian Wilderness World Heritage Area is under preparation by Tasmania under the Tasmanian National Parks and Reserves Management Act 2002. The parties agree to cooperate on the finalisation of this management plan for the purposes of clause 9(a)(i) of this Agreement.

The parties agree to explore further alignment of Commonwealth and Tasmanian regulatory processes in light of, and having regard to, proposed reforms to the Tasmanian land use planning system that are currently under consideration by Tasmania.

The parties agree to cooperate in preparing additional offset guiding material for foreseeable scenarios relevant to clause 6.2(a)(ii).



Execution page

EXECUTED as an Agreement

SIGNED for and on behalf of the Commonwealth of Australia as represented by:

The Hon Greg Hunt MP

Minister for the Environment

Date

SIGNED for and on behalf of the State of Tasmania by:

The Hon Matthew Groom MP

Minister for the Environment, Parks and Heritage

Date


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